By Arlen Specter
Supreme Court nominee Elena Kagan did little to undo the impression that nominating hearings are little more than a charade in which cautious non-answers take the place of substantive exchanges.

In this, she was following the practice of high court nominees since Judge Robert Bork. But her non-answers were all the more frustrating, given her past writings that the hearings were vacuous and lacked substance. She accused Justice Ruth Bader Ginsburg and Stephen Breyer of stonewalling, but then she did the same, leaving senators to search for clues on her judicial philosophy.

Her hearings showed an impressive legal mind, a ready humor and a collegial temperament suitable to the court. But they shed no light on how she feels about the court's contemptuous dismissal of Congress' "fact-finding" role, its overturning of precedent in allowing corporate political advertising, and the expansion of executive authority at the expense of congressional power.

She offered no meaningful observations on U.S. vs. Morrison, in which the court overturned the Violence Against Women Act, blaming Congress' "method of reasoning," notwithstanding a "mountain of data assembled by Congress" demonstrating "the effects of violence against women on interstate commerce" noted in Justice David Souter's dissent.

She offered no substantive comment on Citizens United, in which the court reversed a century-old precedent by allowing corporations to engage in political advertising. Justice John Paul Stevens said in dissent that the court showed disrespect by "pulling out the rug beneath Congress," which had structured the campaign-finance reform bill, McCain-Feingold, on a 100,000-page factual record based on standards cited in a recent Supreme Court decision.

Likewise, she avoided taking sides in the court's expansion of executive authority, declining comment on the historic clash posed by the Foreign Intelligence Surveillance Act and the president's warrantless wiretapping authorized under the Terrorist Surveillance Program.

Despite repeated questioning, Kagan refused to comment on the court's refusal to resolve a contentious dispute involving the Sovereign Immunity Act and the Obama administration's foreign policy. Survivors of 9/11 victims sued Saudi Arabia, Saudi princes and a Saudi-controlled charity with substantial evidence that they had financed the 9/11 terrorists. The Obama administration persuaded the court not to hear the case, arguing that the Saudi Arabian conduct occurred outside the U.S.

On one controversial issue — the question of whether to televise open Supreme Court proceedings — Kagan was candid, stating that she welcomed TV in the court and, if confirmed, would seek to convince her colleagues on the bench. "It's always a good thing," she said, "when people understand more about government, rather than less. And certainly, the Supreme Court is an important institution and one that the American citizenry has every right to know about and understand."

Her testimony recognized that the court is a public institution that should be available to all Americans, not just the select few who can travel to Washington. A recent C-SPAN poll found that 63% of Americans support televising the Supreme Court's oral arguments.

Given the fact that the court decides all of the cutting-edge questions — a woman's right to choose, death penalty cases for juveniles, affirmative action, freedom of speech and religion — public demand for greater transparency should come as no surprise. When 85% of those polled think the Citizens United case expanding corporate spending in politics was a bad decision, one can conclude they want to know why the court decided as it did.

On balance, Kagan did little to move the nomination hearings from the stylized "farce" (her own word) they have become into a discussion of substantive issues that reveal something of the nominee's judicial philosophy and predilections.

It may be understandable that she said little after White House coaching and the continuing success of stonewalling nominees. But it is regrettable. Some indication of her judicial philosophy may be gleaned by her self-classification as a "progressive" and her acknowledged admiration for Justice Thurgood Marshall. That suggests she would uphold congressional fact-finding resulting in remedial legislation and protect individual rights in the congressional-executive battles.

The best protection of those values may come from the public's understanding through television of the court's tremendous power in deciding the nation's critical questions. In addition to her intellect, academic and professional qualifications, Kagan did just enough to win my vote by her answers that television would be good for the country and the court, and by identifying Justice Marshall as her role model.

Sen. Arlen Specter, D-Pa., is a member of the Senate Judiciary Committee.

EDITORIAL: Specter's vote for an Obama job?
The senator says yes to Kagan & Syria; no to Sept. 11 families

By THE WASHINGTON TIMES

4:39 p.m., Monday, July 19, 2010

It appears lame-duck Sen. Arlen Specter, sometime-Democrat from Pennsylvania, hasn't had enough of the Obama administration's job-for-politics merry-go-round. Not one to go gentle into that good night, Mr. Specter is angling to be a special envoy to Syria. At the same time, he is abandoning his own standards in order to support the Supreme Court nomination of Solicitor General Elena Kagan, all while giving the cold shoulder to Sept. 11 victim families even though those victims are trying to help his own legislation.

Mr. Specter's sellout adds new skulduggery to the increasingly troubled ethics of the Kagan nomination. It is a nomination that ought to be foundering because of Ms. Kagan's manipulation of medical information in order to keep partial-birth abortions legal and because she deliberately flouted the law to keep military recruiters away from Harvard Law School.

Even for a politician known for shape-shifting, Mr. Specter's latest metamorphosis is twisted. The senator famously opposed the nomination of Ms. Kagan to her current job of solicitor general, saying she didn't sufficiently answer Senate questions. Now that she wants a promotion, the senator again seemed utterly underwhelmed by her performance during confirmation hearings. In a column for USA Today July 15 about whether or not he would support her, he devoted the first seven paragraphs to complaints about her "stonewalling." Then, almost as an afterthought, he praised Ms. Kagan for favoring cameras in the Supreme Court chambers and for citing the late Justice Thurgood Marshall as her role model - hardly matters of great substance. Yet, on the basis of those two additions to the record, he wrote that "Kagan did just enough to win my vote."

Those are laughably flimsy reasons for giving a promotion to somebody he didn't think fit for her current job. The very same day, though, ABC's Jake Tapper reported that Mr. Specter opened preliminary discussions with the Obama administration about a possible job after his Senate term ends. Three days earlier, the Jewish Telegraphic Agency (JTA) reported Mr. Specter had been in Syria talking about a possible role as a peace mediator between Syria and Israel. Both ABC and JTA noted that Mr. Specter is known (in JTA's words) "to be looking for a more majestic career ender."

This is the same man for whom the White House went to bat by offering a top political appointment to his Democratic primary rival, Rep. Joe Sestak, if Mr. Sestak would only forgo the race. To say that job offer raised a stink would be an understatement. Perhaps Mr. Specter should be more wary of mixing politics with Obama job discussions.

Now comes another oddity. Mr. Specter is author of the Justice Against Sponsors of Terrorism Act. The bill would effectively overturn a court ruling that barred Sept. 11 victims' families from suing Saudi Arabia for providing material support to the terrorists. However, when Mr. Specter held a hearing on the legislation the day before announcing his support for Ms. Kagan, he didn't publicly acknowledge a key letter in support of the bill from famed Sept. 11 victims' advocate Debra Burlingame. Mr. Specter might be embarrassed that Ms. Burlingame's letter spent a paragraph criticizing Ms. Kagan for having submitted the key brief that helped convince the court to disallow the lawsuits.

Mr. Specter already did not approve of Ms. Kagan to be solicitor general. As solicitor general, Ms. Kagan sided against victims' families in a way Mr. Specter thought was so wrongheaded that he introduced a bill to overrule it - and he now cites no other new argument in her favor except for her almost irrelevant support for cameras in the high-court chambers. Despite all of this, he is supporting Ms. Kagan for the Supreme Court, while giving short shrift to the Sept. 11 families who Ms. Kagan opposed but whom he purportedly supports.

If Mr. Specter thinks his road to Damascus will be helped by shilling for Ms. Kagan at the expense of Sept. 11 victims, he should think about what happened the last time the Obama administration dangled a job offer for his benefit: He lost his current job - and his way.

She had him at his change of party. This is about getting a political appointment when he's done in January and any blind fool can see it. He voted AGAINST her when she was up for solicitor general - but now he's voting FOR her?? :rolleyes:

lacarnut

07-20-2010, 05:31 PM

They don't call him SpecTURD for nothing.

Rebel Yell

07-20-2010, 06:01 PM

She had him at his change of party. This is about getting a political appointment when he's done in January and any blind fool can see it. He voted AGAINST her when she was up for solicitor general - but now he's voting FOR her?? :rolleyes:

That appointment will never come. Once Obama is done with him, he'll be rubbing elbows with Wright, Ayers, and Obama's grandma's ghost under the bus.

PoliCon

07-20-2010, 06:08 PM

They don't call him SpecTURD for nothing.

actually - that is a policon original.:cool:

NJCardFan

07-21-2010, 12:07 AM

Reporter: Could you elaborate? What do you mean by "just enough"?
Spector: She's liberal.